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Though a police officer may have
acted improperly in discouraging an alleged rape victim from
pursuing prosecution in order to protect Oklahoma State football
players, the officer's misconduct did not support any civil
rights causes of actions under federal law.
Police officers are commonly sued for overzealousness in
pursuing criminal charges against suspects. Occasionally, though
not nearly as often, police are sued for not pursuing charges
against deserving suspects. As the case reviewed in today's
column reveals, such claims are far more difficult to sustain.
Jennings v. City of Stillwater, et al., No. 03-6206.(U.S. Court
of Appeals, 10th Cir., Sept. 14, 2004).
At a party on Nov. 21, 1999, Alison Jennings had sexual contact
with four members of the Oklahoma State University football
team. Jennings alleged that she was raped. The football players
claimed the sex was consensual.
Stillwater, Oklahoma police Detective Robert Buzzard led the
ensuing investigation and, by all accounts, did everything he
could to help the football players and discourage Jennings from
going forward with criminal charges. Buzzard, who was a former
OSU baseball player and had close contacts to the university's
athletic department, initially interviewed the football players
in a room together, before separating them and questioning them
individually. He then interviewed Jennings, and repeatedly told
her that her story was not lining up with the statements he had
received from other witnesses. He did not tell Jennings that the
witnesses he was referring to were the accused football players.
In addition, Buzzard reported to the local district attorney,
Robert Hudson that Jennings had admitted that she was drunk and
may have consented to have sex with at least two of the
athletes. However, Jennings had actually stated that, while she
was intoxicated, she had agreed to have sex with only one of the
athletes. After confronting Jennings with purported
inconsistencies in her story, Buzzard also convinced Jennings to
sign a waiver of prosecution form, the first time he had ever
utilized such a form in a rape investigation.
The next day, Jennings went to the Stillwater police department,
retracted the waiver, and requested, and was granted, an
interview with a female police officer. In her interview with
the female police officer, Jennings admitted she was drunk at
the party, and could not remember all of the night's events, but
firmly denied that she had agreed to have sex with more than one
of the football players.
Jennings also suggested in her statements with the female police
officer that she was not interested in pursuing prosecution
because of the public nature of the trial, the associated media
scrutiny and the fact that the football players had received
suspensions from the university.
After receiving the police department's investigative reports,
Hudson declined to prosecute the athletes. Shortly thereafter,
Hudson authorized the destruction of the rape kit that contained
physical evidence that Jennings believed could assist her in
pursuing a civil case.
Jennings filed civil lawsuits against Oklahoma State University,
the football players and Buzzard. After settling her claims
against the football players and OSU for a confidential amount,
Jennings moved forward on her federal civil rights lawsuit
against Buzzard alleging that his derailing of the prosecution
of the athletes, along with the destruction of the rape kit,
violated her constitutional right to due process, right of
access to the courts and equal protection of the laws.
Following the completion of discovery, U.S. District Judge Tim
Leonard of the Western District of Oklahoma granted summary
judgment in favor of Buzzard. Jennings appealed.
The 10th U.S. Circuit Court of Appeals affirmed. Writing for the
court, Judge Michael W. McConnell began by addressing Jennings'
claim that Buzzard violated her due process right by violating
an Oklahoma statute that prohibits police officers from
discouraging rape victims from pressing charges. The Court of
Appeals initially reviewed the governing law: "When a due
process claim is premised on a deprivation of property, the
court first must define the precise nature of the property
threatened by the state. See Lehr v. Robertson, 463 U.S. 248,
256 ... (1983). As the Supreme Court has stated, 'process is not
an end in itself. Its constitutional purpose is to protect a
substantive interest to which the individual has a claim of
entitlement.' Olim v. Wakinekona, 461 U.S. 238, 250 ... (1983)."
In light of those principles, the 10th Circuit concluded that a
state statute prohibiting a police officer from discouraging
rape victims from going forward could not, of itself, give rise
to a due process cause of action when it is violated: "Here ...
plaintiff's asserted property interest rests solely on the
language of the Oklahoma statute. There was no court order
specifically applying the protections of the statute to her. The
procedural due process claim can thus not be maintained."
McConnell turned to Jennings' claim that the city's destruction
of the rape kit and Buzzard's various investigative
improprieties undermined her ability to bring a private tort
action against the athletes in violation of her right of access
to the courts. Though initially noting some uncertainty as to
the viability of an access to the courts theory based on
allegations of police cover-up, the court briefly reviewed the
nature of such claims along with the obstacles confronting
plaintiffs attempting to proceed under a right of access theory:
"Right of access claims arise when plaintiffs allege that a
specific claim 'cannot be tried (or tried with all the evidence)
because past official action caused the loss or inadequate
settlement of a meritorious case.' ... In this way, the official
action is said to have ‘rendered hollow the plaintiff's right to
seek redress' in the courts.
"An element of any backwards looking claim is for the complaint
to 'identify a remedy that may be awarded as recompense but not
otherwise available in some suit that may yet be brought.' ...
There is 'no point in spending time and money to establish the
facts constituting denial of access when a plaintiff would end
up just as well off after litigating a simpler case without the
denial-of-access element.' "
The Court of Appeals concluded that, in light of Jennings'
ability to obtain a settlement with the officers, her right of
access claim, if such a claim even exists, could not succeed:
"Under this standard plaintiff's claim must fail. The only
remedy that could conceivably be awarded to plaintiff as a
result of the alleged police misconduct would be damages for the
loss of her civil tort claim against the assailants; but this is
precisely the same element of damage she sought and obtained in
her suit against the four football players and OSU. Far from
being barred from bringing such an action, plaintiff pursued her
claims and reached a monetary settlement with the four football
players and OSU. She thus had access to the courts, and obtained
a remedy. Plaintiff has not specifically alleged, or presented
evidence, that the settlement amount was inadequate on account
of the government's actions so as to deny her meaningful relief.
At several points in her appellate briefs, she alludes to such a
claim... But her complaint contains no such allegation, and the
record contains no evidence on the point. Moreover, in light of
the confidentiality of plaintiff's settlement, there is no way
such a claim could be evaluated."
Finally, the Court of Appeals turned its attention to Jennings'
contention that Buzzard's biased investigation of her
allegations violated the equal protection clause of the 14th
Amendment. The Court initially acknowledged that such a cause of
action could be pursued under the Supreme Court's decision in
Village of Willowbrook v. Olech, 528 U.S. 562 (2000), if
Jennings could show that she was singled out for mistreatment
because of malice or ill will directed toward her. In light of
that standard, the court explained that Jennings could not
prevail:
"Under such a standard, plaintiff could not prevail. She does
not allege that the defendants bore any particular ill will or
malice against her; rather, the gravamen of her claim is that
Detective Buzzard was seeking to protect the OSU football
program from the adverse publicity and other consequences of the
rape prosecution of four of its players.
Presumably, any other person accusing OSU athletes of a heinous
crime would receive similar treatment. Thus, it might be more
accurate to say this is not a case of discrimination against a
'class of one,' but a case of discrimination in favor of a
powerful and popular local institution.
It is not clear that the precedent of Olech can be stretched to
cover such a case."
While expressing sympathy for Jennings' plight, the court
concluded that no cause of action was available under federal
law:
"We wish to emphasize that we in no way condone or excuse the
failure of police to conduct an adequate investigation of such a
crime.
The State of Oklahoma has enacted legislation designed to ensure
that victims of rape, domestic violence and sodomy receive a
respectful hearing and have a right to request prosecution.
Primary responsibility for law enforcement rests with the city
and the state. Today, we hold only that the United States
Constitution does not provide a cause of action on the legal
theories invoked by the plaintiff."
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